Myths Of The Criminal Justice System: Part 2

Note: As part of this week's launch of the HuffPost's Crime vertical, senior writer and criminal justice reporter Radley Balko outlines 10 popular myths and misconceptions about the criminal justice system. Read Part 1 here. Part 3 will appear on Friday.

Myth 4: We have appeals courts to check and verify jury verdicts.

Appeals courts review claims that a defendant wasn't afforded his rights under the U.S. Constitution, or the constitution of a particular state. They also review claims that the prosecution or judge did not follow the proper rules of criminal procedure and decide whether those lapses resulted in in an unfair trial. But they almost never second-guess a guilty verdict by reconsidering the evidence.

In a 2008 article published in the Columbia Law Review, Brandon L. Garrett, a law professor at the University of Virginia, reviewed how appeals courts handled the first 200 cases in which DNA testing exonerated a defendant who had previously been convicted of rape or murder. Of those 200 convictions, just 18 convictions were at one point reversed by appellate courts. Another 67 defendants' appeals were denied without even a written ruling. In 63 cases the appellate court opinion described the defendant as "guilty," and in 12 cases referred to "overwhelming" evidence of guilt. In the remaining cases, the appeals courts either found the defendant’s appeal without merit or found that the errors in the case were "harmless" -- there were problems with the case, but those problems were unlikely to have affected the jury’s verdict -- due, again, to the convincing evidence of guilt.

Myth 5: Due to their position, law enforcement officials are held to a higher standard of conduct than regular citizens.

A strong argument can be made that they're actually held to a lower standard. Unlike any other profession in America, prosecutors and judges are protected by the doctrine of absolute immunity, which completely shields them from civil liability for the decisions they make in the course of their jobs. The courts have ruled that prosecutors can't be sued even if they intentionally manipulate or manufacture evidence that results in the conviction of an innocent person.

Police officers and most other government officials are protected by qualified immunity, which holds that even if they violate a citizen's rights, they can only be held liable if a reasonable person would have known their actions were illegal. And unlike private sector workers, most government employees -- including police officers -- are not expected to have specialized knowledge of the laws governing their professions.

Many states have also passed a "police officer's bill of rights," a special set of protections for officers accused of serious misconduct, including acts that could result in criminal charges. In many jurisdictions, police officers get a "cooling off period" after a shooting or allegation of excessive force. During this period, which can range from 48 hours to 10 days, the officers under investigation cannot be asked any questions about the incident. In most states, police officers also can't be questioned about misconduct without a union representative or attorney present. If any part of the police bill of rights protocol isn't followed, even officers who commit egregious misconduct can find themselves back on the force, often with back pay.

In most places these extra rights only pertain to internal, administrative investigations, not criminal investigations -- but the internal investigations usually take place first. That means bad cops can use those protections to gain advantages not afforded to those who don't happen to work in law enforcement.

Unlike other professions, police officers and other public officials also can't be fired from their jobs or disciplined for invoking their Fifth Amendment right against self-incrimination.

Myth 6: Dangerous criminals frequently escape punishment by "getting off on a technicality."

A regular viewer of Bill O'Reilly or Nancy Grace could be forgiven for thinking our criminal courts are heavily stacked in favor of child molesters, drug dealers and cold-blooded killers. In truth, the conviction rate for federal prosecutors is 90-95 percent. For state prosecutors it varies by jurisdiction, but convictions rates generally fall between 60 and 85 percent.

It also isn't true that appeals courts are setting criminals free en masse because of technical errors that occur in the police station or the district attorney's office. Even when an appeals court does overturn a conviction, the defendant usually remains in custody until the state decides whether to retry the case, and isn't released unless acquitted at the new trial.

But reversals aren't as common as one might think. Though data is difficult to come by, according to a 2005 study in the Florida State University Law Review, from the mid-1940s until about 2004, 87 to 99 percent of federal guilty verdicts were upheld on appeal. A look at 2006 affirmance rates in criminal appeals published in the Marquette University Law Review put the reversal rate of guilty verdicts at about 12 percent. It's even more difficult to find data at the state level, but the same Marquette article looked at a multi-state study from the late 1980s that found about 70 to 80 percent of guilty verdicts were upheld on appeal.

Myth 7: No one confesses to a crime he didn't commit.

False confessions are more common than one might think. In a 2008 op-ed for the Los Angeles Times, Washington, D.C., Detective Jim Trainum wrote about a case in which he was able to extract a murder confession from a suspect. The confession included details about the murder only the perpetrator could have known. Trainum was later shocked to learn that the woman who had confessed to him couldn't possibly have committed the crime. He went back to review the tape, and found that he had inadvertently revealed details about the crime during his interrogation.

According to the Innocence Project, about one in four convictions that have been overturned by DNA testing involved defendants who at one point had actually confessed to the crime for which they were later exonerated.

Minors and the mentally disabled are especially prone to false confessions, but anyone under considerable duress or who has endured an unusually long or harsh interrogation can be susceptible. Rob Warden and Steven A. Drizin point out in the book "True Stories of False Confessions," an anthology of reports of 48 people who confessed to felonies they didn't commit, the confession often puts a halt to the investigation, even when the confessions "aren't corroborated or don't fit the facts of the alleged crimes."